Joel Tenenbaum Loses Again; Bad Cases With Lying Defendants Make For Bad Law

from the unfortunate dept

From very early on, we pointed out that Joel Tenenbaum's defense to being sued by the record labels was a complete and total train wreck. There were some legitimate legal issues to be raised, but on the whole, Tenenbaum's legal team either failed to raise them, or raised them so ridiculously that they were dismissed out of hand. At points, it appeared that they bet the whole game on the idea that downloading music would be seen by the court as "fair use," when that was almost certainly never going to fly (and when the court rejected it, it seemed like Tenenbaum's lawyers had no backup plan). This was all made much, much, much worse by the fact that Joel Tenenbaum was a terrible defendant. He never should have gone to trial and should have taken the first settlement offered to him for a very simple reason: he was guilty of massive amounts of file sharing, and there was no way he was going to get around that point in a trial. Even worse (much worse) he then lied, repeatedly, about this. It's stunning that he didn't just settle and move on. This was a clear cut case where he had no case, and fighting it has only served to set bad to awful precedents, each time clouded in large part by his behavior outside of just the file sharing.

So it's no surprise that, on yet another appeal, Tenenbaum has lost again, as the appeals court has sided with the second district court ruling, which said that a $675,000 award for sharing 30 songs was perfectly reasonable. There is a legitimate issue of whether or not $22,500 per song for songs that were uploaded non-commercially is constitutional. But, partly because of Tenenbaum's own bad behavior, the court has no problem at all with an award that high.

On appeal, Tenenbaum invites us to assume that he is "the
most heinous of noncommercial copyright infringers." We need not
go so far as to accept his offer. The evidence of Tenenbaum's
copyright infringement easily justifies the conclusion that his
conduct was egregious. Tenenbaum carried on his activities for
years in spite of numerous warnings, he made thousands of songs
available illegally, and he denied responsibility during discovery.
Much of this behavior was exactly what Congress was trying to deter
when it amended the Copyright Act. Therefore, we do not hesitate
to conclude that an award of $22,500 per song, an amount
representing 15% of the maximum award for willful violations and
less than the maximum award for non-willful violations, comports
with due process.

Basically, an award this high is okay because Tenenbaum was a brat. The court argues that because he was such a brat an award this high makes sense because it fits in with the "deterrent effect" intended by statutory damages awards. Of course, if you think about that logically, it makes little sense, because by Tenenbaum's own actions, it appears that nothing was going to deter him from file sharing, just as other giant awards and greater levels of punishment have done little to nothing to deter others from file sharing. But, all of that is blurred by the fact that he lied, which mucked up the entire case, combined with a really piss poor strategy in court that never seemed to reach a point that was even half-baked.

There are legitimate questions about the constitutionality of copyright's statutory damages awards, which are nowhere near proportionate with the "wrongs" they are supposedly "righting." But, you don't get good rulings on difficult cases when you have a defendant who acted badly and lied during discovery. Instead, you get a bad precedent like this one.

I'd like someone to audit the Judge's life and point out all of the ways he is violating copyright everyday.

The insane damages are just that, insane.

He was a horrible defendant but the damages awarded far outstrip the actual "crime".
They are based on conjecture of how much they imagine they lost, no factual data.
The law is still from an age when making a copy was long, involved, and costly... so that if someone were to do it, they would have a profit motive.
Copying things is now able to be done with ease, and many people do it everyday blithely unaware they violate copyright so often.

Awards like this backed up with, but well you were a dick too, do not do anything but make people angry. They see the insanity in the system and stare in wonder.

Copyright Trolls, this case, and so many other stupid things happening show over and over the law is broken but no one has the will to fix it, fearing lack of "contributions". For once it would be nice if the people came before the corporations.

the only thing i disagree with is the amount of the award. no one in their right mind could find this amount acceptable in any way, shape or form. being guilty and deserving to be punished is totally different from the way these judges are behaving. it's almost as if they are punishing him for doing something personal to them. the award is insanely high and can only be because of one/both reasons, been well and truly bribed or have interests in the copyright industries themselves so are taking revenge via their position. under no stretch of the imagination can anyone possibly think that any song is worth $22,500 unless grossly 'encouraged' to do so!!

It's a pity that he fcked up the case. Even if he was guilty of infringement there are quite compelling arguments that could be raised here to greatly diminish the fines and even question the entire law (the non-commercial issue).

However, regardless of it the damages imposed are way too high and certainly do not fit the supposed crime. Honestly I've yet to see any seeder that went above a 100, 200 ratio which would justify fines of $200 to $400 per song (considering the standard value of $0.99 and a 2 factor multiplier as a deterrent).

regardless of whether he lied or not, whether he did the deed or not, the punishment is ridiculous and your attitude towards the guy for what he did or didn't do is fucking disgraceful, Mike. no way that sharing 30 songs is worth this amount in fines. all you're trying to do is justify the punishment because of his attitude. his attitude was never on trial and that shouldn't be punishable anyway!

Re:

"He was a horrible defendant but the damages awarded far outstrip the actual 'crime.'"

The justice system is broken, as are many of the laws on the books. I posted this quote a few weeks back:

"When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it" - F.Bastiat

No matter how absurd and overblown the purported 'damages,' the system is biased towards the wealthy and big business. They do it simply because they can.

"he made thousands of songs available illegally"

Re:

If you've been reading Techdirt for some time, you'd know just how much people like Masnick have spoken out against abusive damages, as well as a host of other legal issues. Why is it important? Because it affects everybody. These rulings set a bad precedent for other justices to follow.

"nothing was going to deter him from file sharing"

How many times have we seen that written here at Techdirt?

Listen, kids, when YOUR notions of "sharing" are taken to court you ALWAYS lose. It's illegal to provide copyrighted content for free because you don't own it. Adult society has already worked out the limits of what you can do with someone else's property. I consider the ownership well-based in common law, and I've frequently advised that you just get on to how well the system rewards actual creators -- and how it vastly over-rewards the fat cats, middlemen, and all others who grift off the value of content -- including fat slugs like Kim Dotcom who illegally got millions.

Guess we'll see how well it works for deterrence, starting with fanboys declaring here that "nothing was going to deter ... from file sharing"...

Take a loopy tour of Techdirt.com! You always end up same place!http://techdirt.com/
Where "I'm a pirate! You can't stop me!" is one of the more thoughtful fanboy positions.01:54:56[b-917-2]

Re: "nothing was going to deter him from file sharing"

Why do you keep spewing that common law bullshit? I and plenty of others have corrected you on that. What you're saying is false. Copyright's origins lie in statute law, not common law.
Yea, like the current copyright regime rewards actual creators well...which is why we get articles on Techdirt all the time about artists being screwed over in royalties, and actors from massively successful movies being told they're not being paid because their movie isn't profitable (Return of the Jedi, anyone?).

I know you spew falsehoods. The other readers know you spew falsehoods. You know you lie. So why continue?

On the bright side, this case is teaching a large number of law students how not to practice law.

Two side notes. First, he was not "convicted" because this was a civil trial. He was held to be "liable" for his actions. Second, the 30 songs places limits on the total amount of what could be assessed against the defendant, but where within the range of possible damages for each infringement an amount could be set may be based in part upon other actions demonstrating to the satisfaction of the jury that one amount was more appropriate than another in order to curtail the defendant once more engaging in such activities. IOW, it was appropriate to note the "thousands", but the range of damages awarded for each infringement was limited to the range of the "30".

Re: Re:

i read it and as far as i can see, apart from stating that the fine is way too high, it seems to me that Mike is blaming Tenenbaum for that because he lied, because his legal team asked the wrong questions, because they went the wrong way, whatever. none of the above should make any difference to him being found guilty or not, but using the above as reasons for stitching him up for $22,500 per song is outrageous!! even 100 per song is high, but this amount? wow!!!

Re: Re: "nothing was going to deter him from file sharing"

...geez, and yet, 99.999999999% of the people do so on a regular basis and have ZERO consequences (either wrecking or a ticket) to show for it...

*same* with IP 'theft' (sic): 99.999999% of the time we/you/us get away with it with NO consequences, EXCEPT a BETTER, cheaper media experience...

IT IS NATURAL TO SHARE, IT IS UNNATURAL TO STOP SHARING.

in this locked-down, EULA-ed up the ass, profit uber alles society the masters of the universe have created in their own image, WE CAN'T TAKE A BREATH OF AIR WITHOUT SOME KAPITALIST PIGGIE WANTING TO "MONETIZE" IT...

THAT is the nub of the problem WE have, NOT promoting a prison-society where almighty mammon rules...

Re: Award Size

I think the court is saying to Tennenbaum because you were such a lying idiot you deserve to get hammered. The real issues appear to by the scope, his refusal to change, and apparently committing perjury. Courts do not like the appearance of perjury and it is a fool-proof method to get hammered.

Of course, if you think about that logically, it makes little sense, because by Tenenbaum's own actions, it appears that nothing was going to deter him from file sharing, just as other giant awards and greater levels of punishment have done little to nothing to deter others from file sharing

So we should stop meting out punishment or holding people liable for their unlawful conduct? DO you seriously think that there wouldn't be an explosion of infringing if all penalties and liability were removed?

Re:

seriously...

IF there was a 'law' (what are those? oh yeah, those mutable, amorphous, sometimes secret things which bind 99% of us to behavior the STATE wants to impose, and lets 1% do whatever the fuck they want without consequences) that ANY/ALL plaintiffs, lawyers, and judges in 'IP' cases had to PROVE they had NEVER traduced idiotic IP laws, etc, THERE WOULD BE NO ACTIONS EVER TAKEN...

...its hypocrites all the way down ! ! !

caesar's wife ? i doubt they can rise to the moral standard of caesar's assassins...

Re:

As compared to the high levels of infringing taking place right now with the penalties and liabilities in place?

It's simple.

The likelihood of being prosecuted for copyright infringement through torrenting is small. The ease to do the deed is extremely high. The punishment is astronomical. Therefore, there's no actual reason for someone NOT to torrent, it's too easy to say "Nah,I'll never be caught".

Re:

No, I actually agree and so does Mike. The problem is that the defendant in this case was a lying sack of moron. Tenenbaum is being hammered for that, when he could quite reasonably be seeing jail time for perjury.

Re:

If you made sure that penalties and punishment were:

- Fitting to the crime committed, and not ridiculously expensive
- Actually meted out to the right people, not the sap holding onto the IP address pulled out of nowhere
- Resultant penalties were re-attributed to the artists that were allegedly stolen from

Then you might actually get somewhere. Right now getting RIAAed is as likely as getting struck by lightning. Actual pirates aren't bothered. Making new laws to make it easier to catch other innocent people in this dragnet like SOPA is not the answer.

Re: Thinking out loud...

Re:

regardless of whether he lied or not, whether he did the deed or not, the punishment is ridiculous and your attitude towards the guy for what he did or didn't do is fucking disgraceful, Mike. no way that sharing 30 songs is worth this amount in fines. all you're trying to do is justify the punishment because of his attitude. his attitude was never on trial and that shouldn't be punishable anyway!

I really think you should read the post again. I am not *justifying* it. I'm explaining why it happened, and why it's bad. I agree that the punishment is ridiculous, I'm just pointing out that the court would never focus on just the absurdity of the amount, because Tenenbaum's other actions. That's what clouded the ruling.

I'm not "justifying" it at all. I think it's terrible. What upsets me is that the *next* defendant, the one who wasn't as bad, who did't lie... still gets stuck with this precedent.

Re: Re: Re:

it seems to me that Mike is blaming Tenenbaum for that because he lied, because his legal team asked the wrong questions, because they went the wrong way, whatever.

No, I'm saying that it's no surprise the court ruled the way it did, because they were unable to focus on the specific issues because of all those factors. So yes, I blame him for putting himself in a position to get such an awful ruling and distorting the real issues.

If you want a good ruling, you want a clean case: one where the court can't focus on anything else, like the fact that Tenenbaum was a twerp who lied.

none of the above should make any difference to him being found guilty or not,

using the above as reasons for stitching him up for $22,500 per song is outrageous!! even 100 per song is high, but this amount? wow!!!

I have never said the amount is okay. Just the opposite. I'm just saying Tenenbaum never should have been in a position to have a court rule on this, because they were going to focus on his being a lying twerp, rather than the issue you raise.

Re:

So we should stop meting out punishment or holding people liable for their unlawful conduct? DO you seriously think that there wouldn't be an explosion of infringing if all penalties and liability were removed?

I didn't say all penalties and liability should be removed. Why must you always lie? It's pretty sick.

I said that the court justified the high amount solely because of the supposed deterrent effect. But if there's no proven deterrent effect, then that entire argument goes away.

As such it would go back to liability based on a reasonable look at the harm caused, which I think is fine.

Re: Re:

Obviously the insane awards didn't stop him from sharing, did it? If it did, then he'd not have been in court in the first place. Just because you fail basic understanding of the English language doesn't make Mike a liar.

Re:

People continue to share and they appear to not care about the letter of the law.

Kaplan(Warner Bros) just said in public that pirates are a proxy for consumer interest and that they are turning a blind eye to piracy(i.e. fan art).

This has been going on for the better part of 20 years now, do you need more 20 to get that it won't stop don't matter what you do to others?

No matter what you think about piracy, is a fact. I would like to see LoLCats disappear, but I do know its not going to happen do I get mad because funny cats are everywhere? nope I move on, I don't spend scarce resources trying to stop what others do, I find a way around those issues so I don't have to deal with them and sometimes even I post some LoLCats somewhere is funny how it grows on you if you give it a chance, you stop hating it so much, maybe you should do the same with pirates since obviously you are a closet pirate preaching against the "filth". This reminds me, do you secretly hate yourself blue?
Life is so beautiful, look at the Sun, stop looking into the abyss.

Re: Re:

I don't get why people keep using static monetary values.

It hurts people who are below more and more the more they get below that line and it hurts less and less for the people who get more and more away from that line, it should be based on earnings or declared income, so it hurts everyone the same in the same proportion, with alternative means of hardship for those who don't have income.

It hurts fairness and justice, so why people keep making up arbitrary values?

How hard is to write:

"The punishment shall be the value of the harm caused if known plus a deterrent factor of one year income worth, the paying of such shall be at the discretion of the judge which shall take into consideration how the subject will be able to pay in full the deterrent factor, it must be hard enough to deter somebody but not impossible to be accomplished"